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socrateaser, Lawyer

Category: California Employment Law

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Experience: Retired (mostly)

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Hi ~ I am an insurance adjuster that was laid off the last

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Hi ~ I am an insurance adjuster that was laid off the last qtr of 2010. I signed up to substitute teach for two school districts A and B in California. I have "no" training in teaching. After being unemployed for a year the EDD required that I file a new claim. Unfortunately, I had subbed just enough to put me on a new claim and now the EDD is looking for the school districts to pay unemployment wages. Only district A is protesting my unemployment benefits stating that I have turned down work and I now have an unemployment appeal hearing scheduled.

Do I not have the right to turn down some days of work to attend informal/formal interviews, job fairs, and network? I am also concerned that school district A will subpoena school district B records to show I have turned down some of their assignments as well. I do not have a credential ( I have an emergency substitute teaching credential to teach for only 30 days) and the last 10 years of my work experience has been in insurance. Since school district A has protested my unemployment I have made it a point to call them every week and state that I am available for work and kept documentation.

On another note in one of the classes I subbed I had an irate unstable parent verbally abuse me. I had to call security file a report and then give a statement to the principal. After that experience I was less than enthused about sub teaching for district A. I do not have medical insurance and cannot afford to be assaulted or have my vehicle keyed by one of the students. Some of these classes can be really tough!

How do I prepare my defense for this hearing? What documents should I bring? Should I even bring up this irate parent experience? It was quite unnerving. Would I be better off getting an attorney? If records are mentioned for school district B do I even have to defend myself considering they are not protesting my unemployment benefits. If I lose the appeal will I have to pay back the money from the date of the notice as the letter states plus a 30% penalty. Can I state that this work is not suitable and I am looking for work in my field?

I am diligently trying to get back to work and tired of the stress of subbing but need my unemployment benefits until I can get back on my feet. What is my best strategy for defense??

A thorough response would be greatly appreciated. This is concerning unemployment law regarding the employment development department in the state of California.

A: The employer is claiming that you were not "able and available" for "suitable work." The failure to accept an offer of employment without "good cause" is grounds to disqualify the claimant from UI benefits.

Your defense is that the employer's request came at the last minute and you already had an appointment to interview for a full-time position. If you have documentation to support this testimony, that would improve your ability to convince the administrative law judge (ALJ) that you had good cause to refuse work (i.e., a compelling reason that would cause a reasonable person to refuse employment). Even if you have no documentation, if you can identify the employment opportunity, the name of the interviewer, anything that shows you attended an interview, then that may be sufficient to convice the judge. There is no means by which the judge can investigate your claim, but, I can't encourge you to invent a story.

Another defense is a short-term illness (e.g., suspect food poisoning on the day requested). This would cause you to lose 1/7th of your benefit payment for the day in question, but that's better than a total disqualification. However, you must be careful, because the ALJ could find that you misrepresented your status on your continuing claim report, because you didn't state that you were unavailable for a day due to sickness.

In other words, anything that you testify to at the hearing must be consistent with your claim forms, or you will have a big problem.

What documents should I bring?

A: Anything that can show you had a compelling reason to decline employment on the date in question.

Should I even bring up this irate parent experience?

A: I wouldn't -- it's not particularly relevant.

It was quite unnerving. Would I be better off getting an attorney?

A: I doubt that any lawyer would appear on your behalf for less than $1,000. Anyone who would, probably wouldn't be able to defend you, because he/she wouldn't have studied your case facts suffiently prior to the hearing.

If records are mentioned for school district B do I even have to defend myself considering they are not protesting my unemployment benefits.

A: You could object that the records from the other school are irrelevant to the current complaint -- and, you could object that the records are "substantially more prejudicial than probative, given that there is no witness with personal knowledge of the records to authenticate them." The ALJ could overrule your objection. Regardless, I doubt that records from a different employer will be considered, because there is no one to offer the records into the record.

If I lose the appeal will I have to pay back the money from the date of the notice as the letter states plus a 30% penalty?

A: The ALJ has a great deal of discretion in fashioning a penalty. It's hard to say what a particular outcome might be. The goal is to win -- not to request mercy -- because that usually falls flat on its face.

Can I state that this work is not suitable and I am looking for work in my field?

A: By itself, the claim that work is unsuitable leaves the ALJ with a lot of room to decide whether or not the work is suitable -- rather than to take you at your word. Though, as you apparently only have a 30-day license, you couldn't accept full-time work from the school district even if you wanted to. So, you could show your license to the ALJ and explain that while you need the work and are able and available, since you cannot possibly be hired full-time by the school district, you feel "compelled" to try to find work where you can be employed full time.

Note: One more thing -- don't panic. You can't think straight if you're in panic mode. You have to be your own attorney -- so, try to pretend that you are representing someone else. Write notes about what you want to say and practice saying it before the hearing.

Hope this helps.

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